Front End Specifications and the Propagation of Construction Clai

Table 2.4: Comparison of Defined Terms Owner Architect/Engineer Contractor Subcontractor The Project Approved Provide Specifications Requirements Drawings Final Completion Governmental A

Washington University in St Louis

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All Theses and Dissertations (ETDs)

January 2010

Front End Specifications and the Propagation of Construction Claims

Sidney Hymes

Washington University in St Louis

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WASHINGTON UNIVERSITY IN ST LOUIS School of Engineering and Applied Science Department of Civil Engineering

Dissertation Examination Committee:

Dr Thomas Browdy, Chair

A dissertation presented to the School of Engineering

of Washington University in partial fulfillment of the

requirements for the degree of DOCTOR OF SCIENCE

December 2010 Saint Louis, Missouri

copyright by Sidney J Hymes

2010

ABSTRACT OF THE DISSERTATION

Front End Specifications and the Propagation of Construction Claims

by Sidney J Hymes Doctor of Science Washington University in St Louis, 2010 Research Advisor: Professor Thomas Browdy Front End Specifications represent the administrative, organizational, performance and payment requirements for construction projects The vast majority of construction contracts use Front End Specifications, either from an independent source or prepared in-house In spite of the crucial role of Front End Specifications, little is known regarding whether Front End Specifications increase or decrease claims in construction Further, no published reports

to date have investigated whether construction claims are systematically related to Front End Specification complexity, partnering, business size or document authorship

In the present quantitative study, participants (n = 150) from the construction industry, including contractors, subcontractors, designers and owners, completed an on-line survey of sixteen multi-part questions detailing common Front End Specifications and the impact of those specifications on claims

Results indicate that disputes and claims from Front End Specifications impose significant costs on construction projects, with scheduling specifications/requirements, summary

iii

(scope) of the work and coordination being the most common causes of claims Perceptions

of claims were not related to business size or document authorship Partnering participants trended towards perceiving Front End Specifications as decreasing claims Regulatory

Requirements were generally perceived as too complex and participants who perceived Front End Specifications Regulatory Requirements as too complex were significantly more likely to believe that Front End Specifications would cause more claims

Results are discussed in the context of ConsensusDOCS® library of construction forms, practical implications for construction project management, limitations of the present study and areas for future research

Contents

Abstract ii

List of Tables vi

List of Figures viii

1 Introduction 1

2 Literature Review 4

2.1 A Primer in Front End Specifications 4

2.2 Front End Specifications Compared 10

2.3 Identifying the Sources of Claims 29

2.4 Partnering 44

2.5 Literature Summary and Overview of the Present Study 45

3 Research Methodology 48

3.1 Research Design 48

3.2 Participants 49

3.3 Instrumentation 49

3.4 Procedures 52

3.5 Data Analysis 53

4 Results 54

4.1 Survey Assumptions, Limitations and Participant Descriptives 55

4.2 Do Front End Specifications Cause Claims? (Hypothesis 1) 66

4.3 Which Front End Specifications Cause Claims? (Hypothesis 1b) 68

4.4 Front End Specifications Claims: Additional Costs Incurred and Profits Lost (Hypothesis 2) 77

4.5 Complexity and Front End Specifications (Hypothesis 3) 79

4.6 Would the Use of Performance-Based Front End Specifications Increase or Reduce Claims? (Hypothesis 4) 87

4.7 Partnering and Front End Specifications: Claims and Resolution (Hypothesis 5) 91

4.8 Claims Resolution 94

4.9 Research Results – Summary and Preliminary Discussion 95

5 Discussion 100

5.1 Review of Present Findings 100

5.2 Implications .101

v

5.3 Improving the Front End Specifications 104

5.4 Towards Uniform Front End Specifications 112

5.5 Suggestions for Future Research 122

5.6 Conclusions 124

Appendix A General Background Review 126

Appendix B ASA Seminar Discussion 129

Appendix C Survey Question Reviewers 131

Appendix D Survey Questions 132

Appendix E Sample Front End Specifications Documents 141

Appendix F UFES Survey Responses 205

Appendix G Glossary and Acronyms 213

References 215

Vita 222

List of Tables

Table 2.1: Front End Specifications for a Complex Project 7

Table 2.2: CMAA Form CMAR-3 Topics 8

Table 2.3: Quantitative Specifications Summary 11

Table 2.4: Comparison of Defined Terms 12

Table 2.5: Contract Documents Definitions Compared 13

Table 2.6: Contract for Construction Language Comparison 14

Table 2.7: “The Work” Defined 15

Table 2.8: Comparison: As-Built Drawings Specification 16

Table 2.9: Comparison of Schedule Requirements 19

Table 2.10: Weather Specifications 21

Table 2.11: Comparison of Schedule of Values; Payments 23

Table 2.12: Comparison: Detail Level 27

Table 2.13: CII (1986) “Problem Areas” 34

Table 3.1: Front End Specifications Distribution 51

Table 4.1: Employment Sectors 57

Table 4.2: Business Size 58

Table 4.3: Subsidiary Company 59

Table 4.4: Employment Role/Job Title 59

Table 4.5: Number of Projects 61

Table 4.6: Project Value Summary 60

Table 4.7: Frequency of Claims by Project Value 67

Table 4.8: Frequency of Claims, by Rate of Occurrence, All 69

Table 4.9: Ranking Weights (All Size Categories) 71

Table 4.10: Normalized Claims Rankings, All Companies 72

Table 4.11: Normalized Claims Rankings (Small Companies) 73

Table 4.12: Normalized Claims Rankings (Medium Sized Companies) 74

Table 4.13: Normalized Claims Rankings (Large Companies) 75

Table 4.14: Top Normalized Claims Rankings (All Companies) 75

Table 4.15: Additional Costs and Profit that Would Have Been Retained 78

Table 4.16: Normalized Complexity Response Proportions, All Companies 80

Table 4.17: Normalized Complexity Response Proportions, Small Companies 82

Table 4.18: Normalized Complexity Response Proportions, Medium Companies 83

Table 4.19: Normalized Complexity Response Proportions, Large Companies 84

Table 4.20: Simplicity/Complexity Where SD >=1 86

Table 4.21: Document Authorship and Front End Specifications Claims 90

Table 4.22: Partnering and Negotiation between the Parties without Utilizing Attorneys 92

Table 4.23: Performance-Based Front End Specifications Claims by Partnering and Non-Partnering 93

Table 4.24: Proportion of Claims by Resolution Method 95

vii

Table 4.25: Summary of Survey Responses 97

Table 5.1: As-built and Record Drawings 116

Table 5.2: Schedules 117

Table 5.3: Weather 118

Table 5.4: Schedule of Values 119

Table 5.5: Progress Payments 120

List of Figures

Figure 3.1: Needs Analysis Methodology 49

Figure 4.1: Business Size (by segment) 58

Figure 4.2: Project Frequency by Contract Value 62

Figure 4.3: Most Often Used Standard Form Contract Types 64

Figure 4.4: Authorship by Project Value 64

Figure 4.5: Top Causes by Percent Claims 70

Figure 4.6: Performance-Based Front End Specifications and Claims 89

Figure 4.7: Partnering and Negotiation without Utilizing Attorneys ……… 92

1

Chapter 1

Introduction

Front End Specifications are a crucial, integral component of construction

documentation Little is known regarding whether Front End Specifications increase or decrease claims in construction Further, whether construction claims are related to Front End Specification complexity, partnering, business size or document authorship has been unclear

Determining the impact of Front End Specifications on claims is important

Construction is a very complex process requiring the cooperation and coordination of many skilled professionals from multiple organizations For example, a small to

medium-sized ($5-10 million) project may require fifty or more contractors and

organizations (LePatner 2007) With so many participants and activities occurring at any given time, managing the construction process requires more than technical skills Business acumen and organizational expertise can dictate the ultimate success of a project, but only if all parties agree to their roles in advance Therefore, it is important for the parties to agree to specifications before work begins

Modern construction documentation incorporates both procedural (“administrative”) and technical requirements to establish the policies and procedures necessary to govern the project’s lifecycle The administrative and organizational requirements are contained

in the first part or parts of the project specifications and are commonly referred to as the “Front End” specifications.1 Specifically, the Front End Specifications delineate the rights and responsibilities of the parties involved in the contract, as well as their

subcontractors and the way in which the contract will be administered

1 The phrase “General Conditions” is synonymous with Front End Specifications

As an experienced construction lawyer, the author has a long-standing professional interest in how construction contracts are administered and managed It has been the author’s experience that the Front End Specifications can often complicate an already complex situation with “fine print” Rather than reduce or eliminate confusion and uncertainty, specifications may have the contrary result However, the anecdotal

experiences of the author are no substitute for the scientific application of objective measures with representative samples of multiple levels of job titles within the

construction industry, including contractors, subcontractors, designers and owners

The purpose of the present study was to objectively determine whether Front End Specifications have a tendency to increase or decrease claims in the construction

industry and further, to determine whether construction claims are related to Front End Specification complexity, partnering, business size and document authorship The present study addressed the following research questions:

• Do the Front End Specifications cause disputes and claims?

• If Front End Specifications do cause claims, which are the most significant and have the most significant impact on projects?

• Do significant costs or lost profits result from claims?

• Are Front End Specifications perceived as being either too simple or too

3

This doctoral dissertation is arranged in five (5) chapters In Chapter 2, the Literature Review, with a primer in Front End Specifications, is provided in the context of modern construction documentation Next, representative Front End Specifications are

compared, including Front End Specifications in use at Washington University in St Louis Causes of disputes and claims follow This chapter ends with a summary of the literature and an overview of the present study

Chapter 3, the Research Methodology, details the design, participants, instrumentation and determination of which Front End Specifications to include in the present study, and those procedures and data analyses used to address the research questions

Chapter 4 begins with descriptives of participants Then the research results for each of the research questions are detailed, including analyses to objectively address the research questions

Chapter 5 discusses the present findings towards improving Front End Specifications and then provides a critique of a recently-released standardized documents protocol

study are then offered

To guide the reader, Glossary and Acronyms are presented in Appendix G

Chapter 2

Literature Review

This Literature Review begins with a primer in Front End Specifications in the context

of modern construction documentation Front End Specifications vary greatly and a side-by-side comparison of Front End Specifications from Washington University and Rochester Institute of Technology highlight the stark differences in Front End

Specifications This chapter ends with a Summary of the Literature Review and an overview of the present study

The purpose of this section is to define and discuss the role of the Front End

Specifications in the context of modern construction documentation and project

administration

The purpose of the Front End Specifications is to provide guidance and direction for the non-technical aspects of the work by addressing numerous administrative issues Examples include specifying the executive and senior-level individuals (such as project manager and senior scheduler) that a contractor (whether designer, construction

manager or prime contractor) must provide for the job, the physical spaces (such as offices and work cubicles) to be provided for the benefit of the owner and the company employees or consultants and often the scheduling software that will be utilized Other project management requirements may direct the type and number of copies of reports

5

to be produced, to what extent a contractor may change its work sequence without the prior written approval of the owner and in what form and format the contractor will keep its books of account and project records Similar directives regarding the

administration of the project (notice requirements and addresses, form of notice,

approval requirements, etc.) are also commonly included

In an attempt to reduce inconsistencies as well as reduce costs, the Front End

Specifications are frequently recycled from one project to another2 and from one owner

to another; it is thought that such “standardized” language removes or minimizes the effects of uncertainty from one project to the next (Patterson 2001).3 If this were true, the language would be so precise that it would eliminate the possibility of (or need for) claims and litigation over the meaning of the “standardized” specifications.4 As is well documented, claims and litigation have increased over the years5; it is conceivable that the language an owner inserts into the contract documents as protective measures may,

in fact, be responsible for the same disagreements that the owner sought to avoid in the first place.6

These disagreements may result because the “administrative” provisions are in conflict with project execution For example, owners generally state (and the specifications often provide) that the contractor is solely responsible for the “means and methods” of the

6 A brief general background review is contained in Appendix I

construction.7 In practice, project requirements may be construed by constructors as dictates by the owner amounting to an assumption of the “means and methods” by the owner and any problems that result are arguably the responsibility and financial

obligation of the owner (Klinger and Susong 2006; Mincks and Johnson 2004)

One must look at the process in its entirety to find the common denominator that may lead to disputes and claims While poorly drafted plans and construction documents contribute to disputes, little investigation into what this means has been conducted (Netherton 1983) It is conceivable that overly restrictive Front End Specifications may

be contributing to these problems

It is appropriate to discuss some of the more common Front End Specifications (see Table 2.1 below) and review their use in actual project examples Since even with the

“standard forms” there are variations in the actual language utilized on any particular contract,8 it is not possible to dissect every variation of such examples.9

As was briefly introduced in the opening paragraphs, the Front End Specifications provide the general organizational and administrative directives for the project

(Bubshait and Almohawis 1994) In reality, there are no minimum requirements for Front End Specifications; indeed, a construction contract need only meet the basic legal requirements (offer, acceptance, consideration, legality, mutuality, capacity to contract)10

in order to be binding As noted in the well-known Schexnayder and Mayo (2004) publication, Construction Management Fundamentals, typical topics (in no particular order) in

a “short form” example may include:

7 See, for example, Sabo, Werner, “Legal Guide to AIA Documents, 4 th Ed., Aspen Publishers Online,

2001 IL: Riverwoods at 264

8 See, for example, Hinze and Tada (1993)

9 A potential for additional research could be analyzing the variations in any one owner’s utilization of its own “standard form” documents

10 See, for example, “Legal Elements of a Contract”, accessed at

7

• Administration of the contract

• Terms and Definitions

• Changes in the Work

• Time and Schedules

• Payments and Completion

• Safety

• Insurance and Bonding

• Corrections to the Work

• Terminations and Suspension of the Work

Construction Facilities and Temporary

Soil Erosion and Sedimentation

Communications Equipment

Operations

Tools Training

11 Source: City of Detroit River Rouge Reconstruction project

At the other end of the spectrum, and most often utilized on complex projects, a detailed topical listing may contain the topics shown in Table 2.1 above The standard form advocated by the Construction Management Association of America (CMAA) has fifteen topical titles as shown in Table 2.2 below:

Table 2.2: CMAA Form CMAR-3 Topics

Work by the Construction Manager or by

Separate Contractors

Dispute Resolution

Payments and Completion

It must first be recognized that more topical content together with additional detail does not guarantee a better document Moreover, topical titles, even if identical, do not automatically result in identical content How and to what extent the various subjects are handled may vary significantly from document to document and project to project, even if utilized by the same owner or builder (Hinze and Tada 1993) Even within a project there can be major differences, both coordinated and conflicting, as prime contractors strive to follow the owner's rules and then pass those same rules, together with their own, on to the subcontractors on the project This remains true regardless of the project’s owner and whether the owner is private or public To the extent that the rules become more complex or cumbersome (admittedly, a subjective term), such as with the Federal Acquisition Regulations (“FARs”), the costs associated with such complexities become part of the contract price, whether itemized or not

Before starting this research, it was appropriate to first determine if persons other than the author saw the Front End Specifications as a potential source of disputes and claims During this same time frame, the Construction Management Association of America (“CMAA”) issued a “Request for Grant Proposal” solicitation, which focused

on how a professional construction manager could reduce claims on a project CMAA's interest in the topic remained high and discussions with Bruce D'Agostino, Executive

9

Director of CMAA, resulted in CMAA assisting in the distribution of research

instruments for this research project.12

To further determine if the proposed research had merit beyond CMAA’s interest, a short survey of twenty-four (24) construction professionals (the details of which are included as Appendix B) was conducted by the author during a claims avoidance

presentation and training session at the American Subcontractors Association's 2005 Business Forum and Convention in Orlando, Florida on March 17, 2005 The ASA is a national organization whose membership is comprised primarily of commercial specialty trade contractors.13

In response to the opening question asking if the contract or specifications’ language itself caused claims or disputes, 92% of the attendees answered in the affirmative With one exception (an attorney), the attendees were all specialty contractors and may have had one or more claims experiences that added some bias to their perspectives

Comments by the participants convinced the author that additional research, which would include owners, prime and specialty contractors and construction managers, was warranted

This research project was undertaken to determine if commonly used Front End

Specifications promote or reduce the number of construction claims Additionally, the findings of this research complement recent efforts to establish wide acceptance for standardized Front End Specifications that address many of the concerns identified by survey participants Two major advantages result by utilizing standardized Front End Specifications First, the cost of creating “new” Front End Specifications is eliminated,

12 Discussion with Bruce D'Agostino, Executive Director of CMAA, February 23, 2005, in San Antonio, Texas, while the author was attending the mid-year meeting of the American Council of Construction Education

13 For clarification, a subcontractor is one who performs work for a prime or general contractor A specialty contractor, also frequently called a “trade contractor”, performs a limited scope of work such as mechanical, steel erection or concrete work A specialty contractor can be either a subcontractor or a prime contractor; the status is defined by the contractual relationship between the parties and this is true regardless if the project is public or private, commercial, industrial or residential

thereby reducing initial project document drafting costs Second, the use of consistent language, accepted in advance by the endorsing participants, should reduce the

problems which arise from inconsistent interpretation of “new” language introduced by

an unfamiliar set of Front End Specifications With consistent usage and understanding, fewer disputes and claims should result To demonstrate the extent of the problem, the next section compares Front End Specifications between universities

2.2 Front End Specifications Compared

With the many forms of Front End Specifications available, drawing a comparison between similar project documents places the problem in context To that end, the author acquired copies of “standard” form Front End Specifications from a number of educational institutions, rationalizing that many universities have common goals in their building programs For example, all schools, public or private, are cost-conscious, safety-aware, have the need for accessible facilities and generally want the construction completed by a specific date, often tied to the beginning of the school year or a

semester break The Front End Specifications from four educational institutions14

(including Washington University in Saint Louis, Los Angeles Community Colleges, UC Berkeley and the Rochester Institute of Technology) were selected for comparison purposes; a review of those four documents (See Table 2.3) yields interesting discussion

14 These particular school documents were selected based on the length of the specifications, similarities

to the AIA form document and page counts The two California schools were selected to contrast with the more comprehensive building codes and litigious nature of the state

15 Copies of each of the referenced documents are included in the Appendices

11

Table 2.3: Quantitative Specifications Summary

Washington University

Note LACC = Los Angeles Community Colleges, RIT = Rochester Institute of Technology

Comparing the total number of pages (or another arbitrary classification) does not rate content or completeness of the documents "Quality is more important than quantity" applies in the case of both legal and construction documentation Nonetheless, it is of interest that there is such a large difference in the relative sizes of the various

documents, primarily given the arguably consistent goals of each institution

In terms of inclusiveness, the Washington University and Rochester Institute of

Technology Front End Specifications are comparable They are of similar length and their language often closely parallels that of the AIA documents The two larger

documents are from institutions in California and go into much more detail (as well as covering additional topics) than the non-California institutions.16 It is beyond debate that a good lawyer keeps a client out of court by anticipating issues and providing mechanisms for resolution beforehand; hence, the lengthy LACCD document tries to address all potential problems, including those unique to California law

To demonstrate the similarities and differences between the two documents, selected sections are highlighted in the following tables By presenting the comparable

provisions side-by-side, one can see the nuances in document drafting We begin by comparing the topic of “defined terms” which is set forth in Table 2.4 below

Headings alone do not provide a complete description of the contents of each section For example, not only does Washington University define “as-built drawings” in its

16 This is not surprising: California has some of the most comprehensive construction codes, statutes and court decisions in the nation and is a very litigious venue

definition section, there is a section (GC-4) devoted exclusively to the subject Similarly, RIT has a section (9.9) on the topic but does not include it in its definitional area and its coverage is somewhat less than that of Washington University

Table 2.4: Comparison of Defined Terms

Owner Architect/Engineer

Contractor Subcontractor

The Project Approved Provide Specifications Requirements Drawings Final Completion Governmental Authority Hazardous Materials Product Project Manual

Note Items in the RIT documentation have been re-ordered for comparison purposes

13

Beyond the headings, the content is most important Looking at some of these

provisions in more detail (Table 2.5), we find that the definitions of Contract

Documents are very similar:

Table 2.5: Contract Documents Definitions Compared

The Contract Documents consist of the

Agreement between Owner and Contractor,

these General Conditions, Drawings, Project

Manual and Specifications, addenda issued

before execution of the Agreement, other

documents listed in the Agreement, and

modifications issued after execution of the

Agreement A modification is a written

amendment signed by both parties, a change

order, a construction change directive, or a

written order for a minor change in the Work

issued by the Architect/Engineer

The Contract documents consist of: the Advertisement/Request For Proposal, Form of Proposal, Owner-Contractor Construction Agreement, General Conditions of Contract for Construction, Supplementary General

Conditions of the Contract for Construction (and all Enclosures, Appendices and Exhibits thereto), Specifications, Drawings, and any Addenda issued prior to the execution of the Owner-Contractor Agreement and all Modifications thereto A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a written interpretation issued by the Architect pursuant to Subparagraph 2.2.5, or (4) a written order for a minor change in the Work issued by the Architect pursuant to Paragraph 12.4

The differences are subtle with the RIT definition being more inclusive In addition to the actual contract for construction, the “Contract Documents” (i.e., all the components

of the agreement) include the general conditions (i.e., the Front End Specifications) as well as the supplemental conditions and addendum, together with any modifications and change orders together with “written order[s] for minor work.” Drawings are also included The RIT document also includes both the solicitation for and the contractor’s response (proposal) but not the project manual Washington University’s definition does not include the solicitation or proposal and does include the Project Manual as well as any “construction change directive” Washington University’s provision is similar

to the language in the AIA document:

The Contract Documents consist of the Agreement between Owner and

Contractor (hereinafter the Agreement), Conditions of the Contract

(General, Supplementary and other Conditions), Drawings,

Specifications, Addenda issued prior to execution of the Contract, other

documents listed in the Agreement and Modifications issued after

execution of the Contract A Modification is (1) a written amendment to

the Contract signed by both parties, (2) a Change Order, (3) a

Construction Change Directive or (4) a written order for a minor change

in the Work issued by the Architect Unless specifically enumerated in

the Agreement, the Contract Documents do not include other

documents such as bidding requirements (advertisement or invitation to

bid, Instructions to Bidders, sample forms, the Contractor's bid or

portions of Addenda relating to bidding requirements) (2005, GC-3)

There is no significant difference between the Washington University provision and that

of the AIA form while the RIT specification essentially mimics the AIA language and specifically includes the solicitation and responsive documentation

Compared next is the “Contract for Construction” language (Table 2.6) This provision defines what documents comprise the "contract" as a whole, beyond the single document which carries the title of "Agreement" or "Contract" or even "Contract for Construction"

Table 2.6: Contract for Construction Language Comparison

The Contract Documents form the Contract for

construction and represent the entire integrated

Agreement between the Owner and Contractor,

and shall not be construed to create a contractual

relationship of any kind between any parties other

than the Owner and the Contractor

The Contract Documents form the Contract for Construction This Contract represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral The Contract may be amended or modified only by a Modification as defined in Subparagraph 1.1.1 The Contract Documents shall not be construed to create any contractual relationship of any kind between the Architect and the Contractor, but the Architect shall be entitled to performance

of obligations intended for his benefit, and to enforcement thereof Nothing contained in the Contract Documents shall create any contractual relationship between the Owner or the Architect and any Subcontractor or Sub-subcontractor

In essence, the RIT specification includes all of the language included in the

Washington University provision, supplemented by how the contract can be modified The AIA language is even broader:

The Contract Documents form the Contract for Construction The

Contract represents the entire and integrated agreement between the

parties hereto and supersedes prior negotiations, representations or

15

modified only by a Modification The Contract Documents shall not be

construed to create a contractual relationship of any kind (1) between

the Architect and Contractor, (2) between the Owner and a

Subcontractor or Sub-subcontractor, (3) between the Owner and

Architect or (4) between any persons or entities other than the Owner

and Contractor The Architect shall, however, be entitled to

performance and enforcement of obligations under the Contract

intended to facilitate performance of the Architect's duties

Neither the RIT nor Washington University specifications address relationships

with any lower tier contractors (referred to as either subcontractors or

sub-subcontractors), the effect of which should insulate each institution from direct

claims by subcontractors.17 Note that the AIA document also includes language

making the Architect a third-party beneficiary under the contract between the

Owner and the Contractor Finally, as within the definitional areas of these

documents, compare “The Work” (Table 2.7) The Work defines what is to be

done and is also known in the industry by the terms "scope of work" and

"summary of the work", which are used interchangeably in this document If the work is not fully defined, problems arise and claims and disputes follow While

it would be preferable to have all the details of the contractor's obligations in

one place, that is not practicable

Table 2.7: “The Work” Defined

The Work comprises the completed construction

required by the Contract Documents and includes

all labor necessary to produce such construction

and all materials and equipment incorporated in

such construction

The Work comprises the completed construction required by the Contract Documents and includes all labor and supervision necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction or required for the construction

Both documents’ definitions are nearly identical and closely parallel the AIA

language:

17 Some jurisdictions do not require privity of contract for a subcontractor to enforce a claim directly against an owner The discussion of this topic is beyond the scope of this paper See, for example, Cameron, John G., A Practitioner's Guide to Construction Law, New York: ALI-ABA, 2000

The "Work" means the construction and services required of the

Contractor by the Contract Documents, whether completed or partially

completed, and includes all other labor, materials, equipment and

services provided or to be provided by the Contractor to fulfill the

Contractor's obligations The Work may constitute the whole or a part

of the Project

The reader may wonder whether the nuances justify the use of custom forms

when a readily available “generic” document such as the AIA or

ConsensusDOCS® forms (discussed in Chapter 5) is readily available

Construction contracts would be improved, and claims avoidance success increased, by better aligning the interests of owners and contractors.18 By better defining and documenting what is expected, the uncertainty is, to a great extent, eliminated and the contractor can focus on getting the project constructed As CII noted:

… negotiating a contract [to establish] the intent and effect of [contract] clauses [will result in] language [that]

can be adopted that both parties agree is clear and appropriate for the work at hand (CII 1986, 6)

Changes occur during the course of the project, for any one of a number of reasons As

a result, it is necessary to revise the drawings to reflect the various changes Looking at the content of the "as-built drawings" requirement more closely, Table 2.8 provides a side-by-side comparison of the relevant language

Table 2.8: Comparison: As-Built Drawings Specification

GC-4 AS-BUILT DRAWINGS

A Contractor shall maintain on-site and submit

for approval of Owner's Representative

upon completion of the work, a

complete set of "As-Built" drawings and

specifications of the Contract

Documents which clearly show with

dimensions any variation from working

drawings in the installation of materials

and equipment

B On-Site Requirements: Contractor shall

maintain a complete bound set of all drawings,

1 AS BUILT DRAWINGS 9.9.1 The Contractor shall red mark blue line prints

of the project indicating all changes to the drawings and submit them to the A/E

prior to submitting final request for payment 9.9.2 Where coordination drawings have been prepared in CAD format, the Contractor shall also submit these CAD files

4.11 DOCUMENTS AND SAMPLES AT THE

17

specifications, addenda, approved shop drawings,

change orders and other modifications of the

Contract Documents for inspection at any time

by Owner's Representative Contractor shall mark

up the on-site set each day to record

measurements, changes and deviations from the

design and additions and deletions thereto, as

approved, as well as existing facilities encountered

in the course of the work, which are not shown

on the drawings It is mandatory that the on-site

set of record drawings be kept up-to-date by

Contractor

C Form of Submittals: "As-Built" drawings

submitted by Contractor to Architect or Engineer

for approval shall be red-lined prints, fully marked

up to show all changes approved by Change

Orders, approved Field Change Requests or

changes approved by Owner's representative

SITE 4.11.1 The Contractor shall maintain and make available at the site for the Owner and Architect one record copy of all Drawings, Specifications, Addenda, Change Orders and other Modifications,

in good order and marked currently to record all changes made during construction, and approved Shop Drawings, Product Data and Samples These shall be delivered to the Owner upon completion

of the Work In addition, Contractor shall be responsible for providing the Architect with record drawings on a CAD disk

The AIA language is similar to that contained in subparagraph 4.11.1 of the Washington University document:

The Contractor shall maintain at the site for the Owner one record copy

of the Drawings, Specifications, Addenda, Change Orders and other

Modifications, in good order and marked currently to record field

changes and selections made during construction, and one record copy

of approved Shop Drawings, Product Data, Samples and similar

required submittals

As noted earlier, the differences are minor and utilization of a generic,

standardized form would satisfy the needs of either institution

These provisions have subtle differences The topic is covered in one singular location

by Washington University's documentation; RIT's document addresses the same topic

in two sections some ten (10) pages apart Separated as such, the opportunity to miss something exists by virtue of being addressed in two separate locations Also, note that

§4.11.1 requires the contractor to mark up the drawings “currently” while §9.9.1 has no requirement of contemporaneous preparation While a minor point, this always has the potential of being an issue of contention should a dispute arise between the parties It would be better to include all the language in one place under the singular topic as in the example below:

The Contractor shall maintain and make available at the site for the Owner and Architect one record copy of all Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently

in red on the blue line prints of the project to record all changes made during construction, and approved Shop Drawings, Product Data and Samples The Contractor shall submit the marked up drawings to the A/E (on behalf of the Owner) prior to submitting its final request for payment

The language is similar, but with everything regarding the topic in one place, there is less chance of overlooking the additional language.19 The point of this discussion is that consistency defines standardization and standardization will reduce claims by

eliminating the uncertainty inherent in variations on a theme (See the comments

contained in Appendix F)

The project schedule is, without a doubt, one of if not the most important document created after the contract is signed It provides the basis for measuring progress and, when there are delays, a basis for determining the effect of the delay(s) Compare the project schedule and weather specifications are next compared in Tables 2.9 and 2.10

19 While this change might simplify the specification, allowing it to remain split does not relieve the contractor of the need to fully review and understand the contract documents

19

Table 2.9: Comparison of Schedule Requirements

GC-27 PROJECT SCHEDULE

A Contractor shall confer with Owner's

Representative to determine a mutually acceptable

schedule

B Contractor shall submit written copies of

schedule for approval Schedule shall be related to

calendar periods and indicate starting and

completion dates of major and critical items of

the work and the various stages of construction

Should changes become necessary, Contractor

shall follow approved Project Schedule unless

Owner subsequently approves rescheduling

individual items of the work Should changes

become necessary, Contractor shall revise the

schedule and re-submit for approval

C Almost all of the Work must be scheduled in

advance to permit Owner to make necessary

adjustments in Owner's operations, which will

allow Contractor to perform his work Contractor

shall follow approved Construction Project

Schedule unless Owner subsequently approves

rescheduling individual items of the Work

D Items scheduled shall be sufficiently small in

scope and detailed to permit ready evaluation of

the progress of completion of the item Division

of the Work into scheduled items may be specific

items, class or type of work or by area as may best

serve for monitoring progress of the item

E The dollar value of each scheduled item from

the Schedule of Values shall be listed on the

Project Schedule

F Items of Subcontractor work shall be

scheduled in similar detail

G The Project Schedule shall be plainly related to

calendar dates to permit identification of

scheduled starting and completion dates for

phases of each item of work and events

H If the value to be claimed on Project Schedules

is not linear and continuous with completion

schedule, percentages shall be indicated at

appropriate points on the item schedule line

I Progress Schedules shall be submitted with

each application for partial payment The

schedule for each scheduled item shall be

distinctively marked to show completion claimed

for payment and the total value claimed shall be

written on the schedule

4.10 PROGRESS SCHEDULE 4.10.1 The Contractor, immediately after being awarded the Contract,

shall prepare and submit for the Owner's and Architect's review and approval an estimated progress schedule for the Work The progress schedule shall be related to the entire Project to the extent required by

the Contract Documents, and shall provide for expeditious and practicable execution of the Work The schedule shall state the proposed starting and completion dates for the various subdivisions of the Work as well as the totality of the Work and identify the Project's critical path

4.10.2 With the Progress Schedule, the Contractor shall provide Owner, and Architect, with copies of

a table showing the projected monthly drawdown for value of work completed throughout the contract period

4.10.3 The Progress Schedule shall be monitored and updated at the job meetings and copies supplied to Owner and Architect as updated Each schedule shall contain a comparison of actual progress with the estimated progress for such point

in time stated in the original schedule

4.10.4 If, in the opinion of Owner, Contractor falls behind the latest

Progress Schedule, the Contractor shall take whatever steps may be necessary to improve its progress and shall, if requested by Owner, submit operational plans demonstrating how the lost time may be regained The Contractor is responsible to maintain its schedule so as not to delay the progress of the Project or the schedules of other contractors If Contractor delays the progress of its work or the work of other Contractors, it shall be the responsibility of Contractor to increase the number of men, the number of shifts, the days of work and/or, to the extent permitted by law, to institute or increase overtime operations, all without additional cost to Owner in order to retain any time lost and maintain the Progress Schedule then in effect as established by Owner

The AIA document references the construction schedule in no less than six places, providing an impediment to simplification and understanding By way of example,

§ 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work The schedule shall not exceed time limits current under the Contract Documents, shall be

revised at appropriate intervals as required by the conditions of the

Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work

§ 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement The construction schedules shall then constitute the schedules to be used by the Contractor,

separate contractors and the Other until subsequently revised

Notably absent from the AIA specification is any mention of the type of

schedule to be provided or the level of detail required While a small, simple project may justify the use of a simple bar chart (timeline), larger complex

projects, especially those with long overall durations, require the use of more complex scheduling techniques such as Critical Path or Linear schedules The RIT specification references the project critical path; the Washington University document is silent on the topic.20

The weather specifications (Table 2.10) are again similar Depending somewhat upon the length and location of the project, as well of the specifics (e.g., interior

or exterior or both), the weather provisions may or may not be actually

necessary, though a good draftsperson would include the language in any event

20 Issues surrounding scheduling methodologies and techniques are outside the scope of this study

21

Table 2.10: Weather Specifications

(Weather)

J Contractor shall revise the Project schedule

whenever Owner requests Contractor may revise

the Project Schedule at any time Revised Project

Schedules are subject to Owner's approval The

Project Schedule shall be revised and resubmitted

when the project is 15 percent, 40 percent, 75

percent and 90 percent complete

K The project schedule shall include an allowance

of 63 bad weather days per year This allowance is

divided into the following monthly breakdown:

In the event that weather-related conditions

preclude performance of 60% of critical path

activities scheduled for a particular day, the day

may be claimed by the contractor as a weather day

and charged against the allowance included for that

project If good weather conditions prevail

throughout the contract period and the allowed

number of weather days are not encountered, the

Contractor will not be required to complete the

contract correspondingly ahead of the contract

completion date If poor weather conditions prevail

such that all of the allowed bad weather days are

exceeded, a no cost change order extending the

date of scheduled completion will be executed

preclude performance of 60% of critical path

activities scheduled for a particular day, the day

may be claimed by the contractor as a weather day

and charged against the allowance included for that

project If good weather conditions prevail

throughout the contract period and the allowed

number of weather days are not encountered, the

Contractor will not be required to complete the

contract correspondingly ahead of the contract

completion date If poor weather conditions prevail

such that all of the allowed bad weather days are

exceeded, a no cost change order extending the

date of scheduled completion will be executed

(Weather) 12.3.4 Owner shall not be liable to any Contractor or Subcontractor for damages caused

by any breach of contract, delay in performance

or other act of neglect by any other Contractors

or Subcontractors having Contracts for performance of any portion of the Work or by bad weather, or any causes designated Acts of God or force majeure by any court of law or any cause outside Owner's reasonable control

A much more pronounced difference in content and potential for disagreement is evident in these specifications It is a given that both Rochester, New York, and St Louis, Missouri get “winter” weather (snow, ice, etc.) on a regular basis.21 Rochester does not define what constitutes “bad weather”; in contrast, Washington University allows for 19” of rain between March and May even though 33” is the “norm” (NOAA

2007).22 Granted, contractors can often work in adverse weather conditions; however, leaving “normal” undefined invites dispute

The AIA specification takes yet a third approach, requiring the contractor to meet three requirements:

If adverse weather conditions are the basis for a Claim for additional

time, such Claim shall be documented by data substantiating that

weather conditions were abnormal for the period of time, could not

have been reasonably anticipated and had an adverse effect on the

an unexpected time? The ability to "carry back" or "carry forward" un-utilized weather days could address the issue and avoid potential disputes

In the next example, Table 2.11, the Schedule of Values specifications are compared RIT’s language is straightforward while Washington University’s borders on

micromanagement In the end, both institutions will acquire the same product,

21 According to records maintained by the National Oceanic and Atmospheric Administration (NOAA), Rochester averages about 85-93” of snowfall and 160” of rain while St Louis can reasonably expect 19”

of snow and 108” of rain per year

22 Information obtained from NOAA’s National Weather Service Weather Forecast Office, last accessed

on 1/20/2007 at www.crh.noaa.gov/lsx/climate/STL/annual_snowfall.php and

23

regardless of the language, provided that the individuals reviewing the reports

understand the underlying process and procedures

Table 2.11: Comparison of Schedule of Values; Payments

GC-26 SCHEDULE OF VALUES

A Contractor shall submit to Owner for approval a

breakdown showing portions of the Contract Sum

as the value of each item of the work

B Contractor's schedule of values shall be

subdivided for each item of work identified in the

Contract Documents and additional value

subdivisions for each subcontractor

GC-9 PROGRESS PAYMENTS

A Owner shall pay Contractor value of work in

place and materials stored on site upon approval of

Application for Progress Payments submitted by

Contractor not more than once per month The

Owner will attempt to make payment within ten

days of receipt of invoice to Contractors that have

sub-contracted with MBE and WBE firms Direct

payment will be made to the MBE and WBE firms

The application for payment shall be submitted on

AIA Document G702 or it’s equivalent with

continuation sheets The continuation sheets shall

be complete showing individual lines for each

specification section and contractor

B Owner shall retain ten (10%) percent of each

scheduled value of each payment to contractor to

ensure the proper performance of the contract

C With application for Progress Payment

Contractor(s) shall furnish notarized waivers of lien

for the value of the progress payment, and

subcontractors and material suppliers shall furnish

notarized waivers of lien for the prior progress

payment, conforming to the requirements of

Chapter 429 RSMo

D With Application for Progress Payment,

Contractor shall submit a copy of the Construction

Progress Schedule, which shall show the portions of

the work claimed as completed for payment as

related to the Schedule of Values Application for

payment shall show retainage as a line item for each

scheduled value

E Storage of Materials Off site and Payment (1)

The Contractor and his Subcontractors shall obtain

prior written approval from the Owner through the

Architect for permission to store only materials to

be incorporated in and made a permanent part of

the Work, for which Progress Payments will be

requested, at off site locations Any and all charges

for storage, including insurance, and any and all

9.2 SCHEDULE OF VALUES 9.2.1 At least 30 days before the first Application for Payment, the

Contractor shall submit to the Owner and the Architect for approval a schedule of values which

in the aggregate equals the total Contract Sum, divided so as to facilitate payments to

Subcontractors, supported by such data or evidence of correctness as the Architect may direct or as required by the Owner This schedule, when approved by the Architect and Owner, shall

be used to monitor the progress of the Work and

to compute the amounts of the various payments requisitioned on the Certificates For Payment All items with entered values will be transferred by the Contractor to the "Application and Certificate For Payment," and shall include the latest approved Change Orders Change Order values shall be broken down to show the various subcontracts The Application For Payment shall

be on a form as provided by the Architect and approved by Owner Each item shall show its total scheduled value, value of previous applications, value of the application, percentage completed, value completed and value yet to be completed All blanks and columns must be filled in, including every percentage complete figure No Application for Payment shall be required to be approved until after the Schedule of Values has been approved by the Owner and Architect

9.2.2 The Schedule of Values and Applications for Payment shall be prepared by the Contractor using

a modified version of A.I.A Forms 702 and

G-703, "Application & Certification for Payment" The Schedule of Values shall be submitted to the Owner and the Architect for approval a minimum

of thirty (30) days before the first Application for Payment A milestone payment schedule may be required by the Owner, and shall be made a part

of the Schedule of Values when agreed upon by the parties Profit and general office overhead shall be included in each item All Applications for Payment, Change Orders, and other documents involving monetary statements shall have totals rounded off to the whole dollar amount for 0 cents through 50 cents All items above 50 cents through 99 cents to the next dollar

charges for transportation to the site shall be borne solely by the Contractor Before approval, Owner requires that off-site materials be stored in an approved warehouse, with proper proof of

insurance and a letter stating the following

information (a) The name of the Contractor and/or Subcontractor leasing the storage space (b) The location of such leased space (c) The leased area: the entire premises or certain areas of a warehouse giving the number of floors or portions thereof (d) The date on which the material was first stored (e) The value of the material stored (2) The

Contractor and his Subcontractors shall notify the Architect and the Owner, at least once each month,

to visit the warehouse where the materials are being stored (3) The Contractor and his Subcontractors shall mark each sealed carton with the name of the project and the Architect (4) A perpetual inventory shall be maintained for all materials held in storage for which payment has been requested (5)

Payments for materials stored off site in an

approved warehouse and insured shall be at the sole discretion of the Owner Any additional costs to the Owner resulting from storage of material off site for which payment is requested, such as, but not limited

to, travel expenses and time for inspectors, shall be back charged to, and paid by the Contractor Title

to materials stored off site shall be transferred to the Owner when the Owner pays for such stored materials F All applications for payment shall be submitted on AIA document G702, Application and Certificate for Payment Applications for payment shall reflect all items detailed in the approved schedule of values with corrections made for new items or Contractors as Work progresses

G On projects greater than $300,000 in value, Contractor shall furnish a bound monthly project report with the Application for Progress Payment The report shall contain the following information: (1) A cover letter describing the general status of construction activities as they relate to the project schedule and description of activities anticipated during the next month (2) An activity report describing items completed during the month for each individual construction task Include a log of daily weather conditions and temperatures (3) A manpower summary for the month indicating daily manpower levels for each contractor and trade (4)

A minority report summarizing the daily workforce composition by ethnic group and gender for the month (5) A log of change requests (6) A log of submittals (7) A log of requests for information (8) All project meeting and conference call notes for the month (9) Engineers’ certifications for the month (10) Four 8-inch by 10-inch color

25

photographs of work progress recorded during the

month (11) List of unresolved issues that may

impede meeting project milestones or schedule

H In the event Contractor or any subcontractor

tenders substitute security, the following shall apply:

(1) All such substitute security shall be solely in the

name of “Washington University” (2) Contractor at

its sole cost shall cause all substitute security to at all

times be held by a financial institution, title

company or other third party custodian in the St

Louis, Missouri metropolitan area acceptable to

Owner under terms which permit Owner to take

immediate possession of any or all substitute

security on demand at any time during normal

business hours with or without cause (3)

Contractor at its sole cost and as agent for Owner

shall administer any and all substitute security as

required by applicable law including without

limitation making release thereof and payment of

interest and income thereon to itself and/or to

subcontractors as and when required by the

Contract Documents and applicable law (4) Not

less often than monthly, Contractor at its sole cost

shall provide Owner a written certification and

report of all substitute security itemized by

subcontractor and in detail reasonably satisfactory

to Owner (5) Contractor hereby agrees to

indemnify, defend and hold harmless Owner and its

trustees, officers and employees against any and all

claims, demands or liabilities arising out of the

negligent or otherwise improper administration by

Contractor of substitute security and/or any

negligence of the custodian.I Applications for

Progress Payment shall not include costs for items

that are not a direct expense of the work Costs that

are not authorized include, but are not limited to the

following: (1) Professional dues for contractors and

their employees (2) Cumulative rental costs for

equipment that exceeds their purchase price (3)

Workers’ Compensation Insurance credits – Credits

given by the insurance company shall be reflected as

a credit to the Owner

The Washington University provision is seemingly simple and to the point In actuality, when read in conjunction with the Progress Payment specification (GC-9), it is much lengthier than the corresponding RIT provision It is very detailed as to how payments are to be made, varies the requirements somewhat based on contract size, requires lien releases with each payment, and, in the final section, specifically excludes certain items

It requires the contractor to provide progress photographs with each payment

application (neither the RIT nor AIA documents have comparable requirements) and discusses “substitute security”23 for the contractual obligations Again, both the AIA and RIT have no similar language.24 From Washington University's perspective this appears

to be beneficial, yet there is a potential claim, if not a lawsuit, in the language Looking

at section GC-9.H(2), Washington University (Department of Facilities Planning and Management 2005, p GC-8) has claimed the right to

“ take immediate possession of any or all substitute security on demand at any time during normal business hours with or without cause.” (Emphasis added)

On its face, the language allows Washington University to arbitrarily claim the security for any reason whatsoever, appearing to be penal in nature It is unlikely that the

University would exercise that power in the absence of compelling facts (at least from its perspective) While the University is a non-public institution and not subject to the same due process claims as a public body, a court could easily find that the language is against public policy, at least to the extent that cause is not required for the University

to act, and a contractor subjected to its application might well raise the issue even though it voluntarily signed the contract document A minor change in the language might possibly avoid having the language stricken:

take immediate possession of any or all substitute security on demand at any time during normal business hours when the Owner has a good faith belief that performance of the contract is jeopardized and possession of the security is necessary

to protect its interests

While there is no guarantee that the suggested change will avoid any potential dispute, it does serve to eliminate the argument that the University has acted capriciously

23 Substitute security is a mechanism for protecting the owner’s interest The most common security is a performance bond; substitutes (alternatives) could be cash, assignments of interest or receivables or similarly acceptable assets

27

There is always the issue of too little versus too much detail There is no one right answer; the decision is often driven by business and legal considerations Table 2.12 compares the level of overall detail in the RIT and Washington University

specifications:

Table 2.12: Comparison: Detail Level

GC-10 Extras/ Changes to Work

GC-11 Substantial Completion and Acceptance

GC-12 Final Inspection, Acceptance, Payment

E PURCHASED MATERIALS

GC-13 Equipment and Materials

GC-14 Purchase of Material and Equipment

GC-15 Shop Drawings and Samples

GC-16 Samples and Testing

F WORK ON CAMPUS

GC-17 Contractor’s Working Conditions on

Campus

GC-18 Responsibilities of Contractor

GC-19 Equal Employment Opportunity

GC-20 Job Site Safety and Security

14 3.3 Right To Stop Work

15 3.4 Right to Carry out Work

16 3.5 Right to Audit Contractor's Records

17

18 4 CONTRACTOR

19 4.1 Definition

20 4.2 Review of Contract Documents

21 4.3 Supervision & construction Procedures

22 4.4 Labor & Materials

29 4.11 Documents & Samples at the Site

30 4.12 Shop Drawings, Product Data & Samples

7 MISCELLANEOUS PROVISIONS 7.1 Governing Law

7.2 Successors and Assigns 7.3 Written Notice 7.4 Claims for Damages 7.5 Performance Bond & Labor & Material Payment Bond

7.6 Rights & Remedies 7.7 Tests

7.8 Interest 7.9 Dispute Resolution 7.10 Waiver of Remedies

8 TIME 8.1 Definition 8.2 Progress & Completion 8.3 Delays & Extensions of Time

9 PAYMENTS & COMPLETION 9.1 Contract Sum

9.2 Schedule of Values 9.3 Application for Payment 9.4 Certificates for Payment 9.5 Progress Payments 9.6 Payments Withheld 9.7 Substantial Completion 9.8 Final Completion & Final Payment 9.9 As Built Drawings

10 PROTECTION OF PERSONS &

PROPERTY 10.1 Safety Precautions & Programs 10.2 Safety of Persons & Property 10.3 Emergencies

10.4 Hazardous Materials

11 INSURANCE 11.1 Contractor's Liability Insurance 11.2 Commercial General Liability Policy 11.3 Certificates of Insurance

11.4 Subcontractor Insurance 11.5 Builders Risk Insurance 11.6 Miscellaneous Provisions

12 CHANGES IN THE WORK/SUBSTITUTIONS

29

12.1 Change Orders 12.2 Concealed Conditions 12.3 Claims for Additional Cost 12.4 Minor Changes in the Work 12.5 Substitutions

13 UNCOVERING & CORRECTION OF WORK

13.1 Uncovering of Work 13.2 Correction of Work 13.3 Acceptance of Defective or Non-Conforming Work

14 TERMINATION OF THE CONTRACT 14.1 Termination by the Contractor

14.2 Termination by the Owner 14.3 Termination by the Owner for Convenience

It is possible that each of these sets of specifications has been developed and evolved as

a result of the experiences of the institution and the people who represent it Certainly, also at play is the influence of the institutions’ respective legal counsels whose role and goal is to protect the institutions’ interests This is no different, of course, from the role legal counsel plays in any other enterprise, regardless of the nature of the business However, adding complexity does not automatically result in improved results Tailoring specifications to a particular project was recommended by the 1986 CII study Long,

“boilerplate” documents such as the Washington University (and, to a greater extent, the even longer AIA document) add additional bulk and complexity to a project’s documentation

A “claim” need not be reduced to a matter in arbitration or litigation A “claim” starts with notice to the superior participant (e.g., from subcontractor to prime, from prime contractor to owner, etc.) of a potential demand for additional time, money or both Many times the notices are provided on an “abundance of caution” basis; most

construction contracts require that notice be provided within a given number of days of knowledge or occurrence of an event, incident or awareness For example, a Front End specification may provide the following:

Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any Clause of these Conditions or otherwise,

he shall give notice of his intention to the Engineer, with a copy to the Employer, within 28 days after the event giving rise to the claim has first arisen (Federation Internationale Des Ingenieurs-Conseils 1987, 1988, 1992, §20.)

In this section, previous research efforts focusing on the Front End Specifications are reviewed and, where appropriate, the effect on this research is noted While much time and effort has gone into research about construction claims, little has been documented about the role of Front End Specifications in that arena

Project specifications are divided into two general categories The largest category is comprised of the design or building specifications (requirements) such as soil

compaction requirements, interior finishes and plumbing and mechanical requirements These technical specifications have traditionally been set forth as Divisions Two

through Sixteen of the construction specifications, following the guidelines of the Construction Specifications Institute (CSI 2003) The other category is comprised of the administrative requirements, which are most often contained in Division One of the contract specifications (Jellinger 1981; Rosen 1974) These Division One specifications are known as the Front End Specifications and are also referred to as the General Conditions.25

2.3.1 Background

Reams of paper have been devoted to the related topics of construction disputes and claims Washington University’s library system contains no less than eighty volumes Few of the publications (less than 10%) specifically discuss Front End Specifications to any significant extent, though there are often generalized references to the contract specifications While these non-judicial published materials tend to focus on the

25 “Division One” refers to the location of the provisions in the format developed by the Construction